1. What benefits do you get from a VA Disability claim?

There are several major categories of VA benefits you can get when you file a VA Disability claim. One category is what is called the “Non-Service Connected Pension” which is available to extremely low-income veterans with disabilities. Another category is education benefits. A third category is burial benefits. A fourth category is health care benefits. And the category that is the focus of this post – and the Veterans Law Blog – is disability compensation for diseases, conditions, and disabilities that had their origin in military service.

(Note that you do not need to show that military service CAUSED the disability – Congress long ago recognized that Veterans should get benefits even if a disease or disability that wasn’t caused BY service has its origins IN service.

In addition to the basic rates of compensation mentioned above, you can get additional compensation for different scenarios that you raise in your VA Disability claim. Here are just a few:

A Veteran who has certain percentage ratings for multiple disabilities can be eligible for additional Special Monthly Compensation. This Special Monthly Compensation is also available to Veterans with certain disabilities that limit use of, or that resulted in the loss of, their extremities, their reproductive organs, organs of special sense (vision, etc).

2. How do I file a VA Disability claim?

It used to be that you could file a VA Disability claim for a service connected condition, disease or disability just by writing your claim on a piece of paper – a famous anecdote that floats around the Veterans’ community is the veteran who wrote his claim on a square of toilet paper while in prison.

This is no longer the case: filing a VA Disability claim has, like many other things in this world, become increasingly complicated.

The CAVC can do any of the following: affirm (uphold) a BVA Decision, reverse (reject) a BVA decision, vacate (erase) a BVA decision, and remand (send a decision back to the BVA for repair of legal errors. It can also combine 2 or more of those types of relief, depending on the case.

Step 6: Judicial Review phase

If you are not satisfied with your CAVC Decision, you have a limited opportunity for judicial review at the Federal Circuit Court of Appeals (Fed Circuit) and then the Supreme Court of the United States. The Fed Circuit only has the ability to decide PURE questions of law…I’d be willing to bet that 80-90% of Fed Circuit decisions in Board cases are “Rule 36’s”….decisions without a written opinion, typically because the Court does not have jurisdiction over the appeal.

Getting review at the Supreme Court is much harder, and appeals to both courts can be very expensive….filing fees alone at the Federal Circuit cost $500 and the cost of copying and filing the brief and the record of proceedings below costs between $2,000 and $5,000….so attorneys and Veterans tend to be more conservative about appeals to these courts.

4. Where do I file a VA Disability claim?

However, you can file your VA Disability claim online through the eBenefits portal for Veterans, or, if you want to be sure that you create a paper trail for your claim to make sure it is not lost by the VA, you can file it by sending it to the Evidence Intake Center (also known as the VA’s EIC in Janesville, Wisconsin).

So, while an illegal immigrant can hire an attorney to fight deportation whenever he or she can afford it, Veterans who served our country in uniform are not legally allowed to pay for an attorney or experienced professional accredited agent’s help until the VA denies them a benefit.

While a criminal charged with a crime has a constitutional right to an attorney, a Veteran that fought and bled to preserve the Constitution are prohibited from exercising their right to hire and pay an attorney or experienced professional until the VA screws them over first.

Organizations like the Paralyzed Veterans Association (PVA) and the Vietnam Veterans of America (VVA) get consistently high marks for the work they do for their members.

6. How long does a VA Disability Claim take?

The amount of time that it takes for the VA to decide a VA Disability claim can very greatly, and depends on a lot of variables: how difficult your claim is, how many conditions you include in the VA Disability claim, how well your claim is prepared, whether your claim is a Fully Developed Claim or not, how big your VA Regional Office is, etc.

Here are some general rules:

If you click here, the VA says that time is 114 days (ish) for a Fully Developed Claim, and 121 days (ish) for a non FDC claim. In 10 years of representing hundreds of Veterans, and talking with tens of thousands more, I’ve never met a Veteran that got a decision in 125 or fewer days. I’ve met a couple that had a decision within 3-6 months. Most Veterans should plan on the process taking about 12-18 months, from file to decision. And that’s not counting the appeals.

7. How do I check the status of a VA Disability claim?

That, right there, is the million dollar question.

The VA will tell you to call their VA toll-free number 1-800-827-1000 to get the status. Veterans that use this approach find that they are able to enjoy their favorite hobby while waiting to talk to someone at the VA: some Veterans relax and enjoy 2-3 hours of hold “muzack”, others read the week’s newspapers or a few magazines, and others have actually written a book while waiting on hold. If you are among the patient and lucky few that get through to a human being on the 1-800 line, here are some tips and pointers how to get more value and information out of the call.

The VA also suggests that you check your status on eBenefits. Be forewarned, though – eBenefits is a glitchy and inaccurate tool. For example, if you log into my eBenefits account, it shows that the VA held a hearing on my VA Disability Claim 2 years before I filed it. That’s a true story, folks. Now that is efficiency – maybe the VA will start a new pilot program: the pre-claim denial process.

Be careful what you see on eBenefits..it’s not always your claim status, and its not always accurate, and its rarely up to date.

8. How are benefits in a VA Disability claim calculated?

I wish that I could tell you that the VA simply added up your disability ratings from individual conditions to reach your total disability rating, and paid you according to that rating.

In most VA disability claims, the effective date will be the LATER of the date you filed your claim and the date the entitlement arose. Click here to learn more about what that means.

If you file your VA disability claim within 1 year of leaving service, your effective date will typically be your date of separation from military service.

Claims for Increased compensation rates follow the general effective date rule, except that if you can show that the worsening of your condition started to occur BEFORE you filed your claim, you can get up to 1 year earlier.

In some cases, if the law changes while you are trying to prove a claim, or after you’ve been denied a claim, and your claim is granted pursuant to that change in law that made it easier for you to win (in other words, the change in law is a “claim liberalizing rule”) you may be able to get up to 1 year prior to the date of your claim as your effective date

If you submit New and Material evidence within 1 year of the date your ratings decision denied your VA Disability claim, your claim is “open and pending” until the VA issues a new ratings decision, and if your benefits are granted based on that new and material evidence, your effective date could be the original date of your claim. This is a dangerous path to take, though, because if the VA denies your claim because the evidence wasn’t New and Material, then you may have lost your original effective date if you did not file an appeal within that same year after the VA Ratings Decision.

10. Are VA Disability benefits for life?

I’ll answer this question along with #11.

11. Are VA Disability benefits permanent?

Generally speaking, they can be.

If a medical condition substantially improves, the VA can propose to reduce your disability compensation benefits to different levels. The rules that they have to follow to do this can differ depending on certain factors, but here are a few considerations…you can click here to learn more about how the VA tries to pick Veterans’ pockets by reducing benefits, and get an idea how to stop it.

The VA can only reduce “continuous ratings” (those that have been in effect for 20 years or more) after showing that they were awarded based on actual fraud by the veteran.

There are 3 types of ratings in VA Disability claims that are considered “protected” ratings, which the VA cannot reduce without showing first a “substantial improvement” in your medical condition.

If a VA Disability rating is considered “unprotected”, the VA can reduce it, but they have to send you notice of their intent to respond, give you an opportunity to respond and submit evidence and if you request it, provide a hearing. The timelines on this type of reduction are pretty friendly to the VA, and pretty hard for the person filing the VA Disability claim to understand, no less follow, so be ready to move quick and do plenty of legwork to understand what is happening and how to stop it.

If you are incarcerated for more than 60 days, on the 61st day, the VA can reduce your VA Disability compensation to no less than 10%, and must reinstate it after your release from jail. Click here to learn more about each time of rating and how long they stay in effect.

12. Are VA Disability benefits subject to child support?

Yes.

In every state that I am aware of, VA Disability benefits are considered income for the purposes of calculating child support.

Child support laws differ in each state, so there may be nuances from state to state how much is subject to child support, particularly when a portion of your VA Disability benefits is offset by military retirement payments. The best thing to do is get out ahead of this situation by talking to a local family law attorney and making sure you do right by your kids, state law, and federal law.

If you need a referral to a family law attorney in Texas or Arkansas, fill out a support ticket. I know a lot of family law attorneys in both states and may be able to give you a couple referrals.

13. Are benefits from my VA disability claim taxable?

Nope.

At least not under Federal law. Amounts paid to Veterans or their families for education, training, subsistence allowances, clothing allowances, disability compensation and/or pension payments are not taxable by the Feds.

As to whether these benefits are taxable at the State level, consult your state’s income tax agency, as the answer will vary state-by-state.

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14. What conditions are most common in a VA Disability claim?

If you don’t have the stomach to read MORE VA propaganda – and honestly, who can blame you – here are the Top 10 conditions that the VA reports as being part of most original VA Disability Claims ((click on the links to see information published on the Veterans Law Blog about these conditions common to VA Disability claims)

Here are some other conditions that I see very frequently in many a VA Disability Claim (click on the links to see information published on the Veterans Law Blog about these conditions common to VA Disability claims)

About Chris Attig

Chris Attig is an accredited VA Attorney at AttigSteel.com Chris served as an artillery captain in the U.S. Army from 1993 - 2004, and continues helping his brother and sister Veterans through the VeteransLawBlog.org, which educates over 60,000 Veterans every month on VA claims procedure and rules. Chris also serves on the Board of Directors for the National Organization of Veterans Advocates (NOVA).